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3 ELR 20071 | Environmental Law Reporter | copyright © 1973 | All rights reserved Sierra Club v. ButzNo. C-72-1455 (N.D. Cal. August 29, 1972)A preliminary injunction is granted (subsequently dissolved, infra) preventing defendant from allowing any development of de facto wilderness areas pending preparation of impact statements under NEPA. The court holds that development of a de facto area is a major federal action. The preliminary injunction is dissolved and the action dismissed (Dec. 11, 1972) because the Forest Service now requires impact statements for future development contracts, and because the holders of existing contracts, who are not before this court, should be sued in the courts where the de facto areas are located. See ELR Dig. [251] for list of documents available, and for summaries of arguments. Counsel for Plaintiff Barry Fisher Counsel for Defendant Counsel for Intervenors Conti, J.: REPORTER'S TRANSCRIPT OF HEARING ON PRELIMINARY INJUNCTION THE COURT: Well, first I would like to say that it has been a very pleasurable experience for the Court to sit here and listen to such very able argument from all counsel. I think your case has been prepared extremely well and sometimes I say when a case is prepared extremely well it makes it easy for the Judge. Well, that isn't necessarily so when all are prepared extremely well. It makes it very difficult for the Judge. I have given this case quite a bit of thought and you people have been here for three days; we have a number of motions before the Court. Government's motion for summary judgment is denied and the motion, intervening lumber companies' motion to dismiss, is denied. The remaining motion before the Court is the motion for the issuance of a preliminary injunction. And the issue here is whether or not there has been a sufficient showing for the preliminary injunction and any findings of the Court at this stage are solely for the purpose of the preliminary injunction, and are not necessarily with reference to any case in chief. I would like to say offhand at the beginning that this Court does not wish or intend to run the Forest Service or tell them how to run their operation, because probably the Courts are the least equipped to do such a task. But the Courts are equipped to handle the proposition of whether or not the Federal law has been complied with. In reviewing this whole case I think the basic issue gets down to whether or not the NEPA section has been complied with. The protection of the environment is of such importance that Congress, as we all know, enacted the Environmental Protection Act. It became effective in January of 1970. And that Act placed great emphasis upon the protection of the environment. And I know that all of you are very well acquainted with the Act. However, for the purposes of this discussion this afternoon Congress in the Act states, in Section 4332: "Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall . . . ." It applies to all agencies of the Federal Government and what they shall do. We have here a case where the Forest Service is charged with wardship of one of the last remaining jewels that the country has, and that is our wilderness areas. Probably most of this area is sui generis in that it's probably the last remaining truly virgin resource that this country will ever have. It is true, we can plant it again but in so doing you take away from man the satisfaction in knowing and feeling that he's in an area that has been unspoiled by humans. So Congress has given intent to this in the Wilderness Act and the Environmental Impact Act [sic] further formulates the policy. This Act is most important and has primacy on all the actions that governmental agencies take subsequent to January 1, 1970. There should be a cognizance of this and an awareness of this and it should be complied with. If we take the position of the Forest Service, which by their directive and in their directive there's been no mandate of Congress to do this as in a Wilderness Act, where the mandate of Congress was to the Secretary of the Interior, and yet from the testimony I have heard here it has been the Chief of the Forest Service who has taken his mandate from his interpretationof the Multiple Use-Sustained Yield Act. And it's on the basis of this that he has set forth and promulgated certain policies and the criteria to be followed. Well, that doesn't mean that it can't be changed tomorrow or it can't be changed next year. It doesn't mean that new administrations can't come in. I am not speaking of the top administrations, but administrations within the Department itself and different philosophies. I believe one witness commented here this afternoon that there's going to be a whole new implementation of the system next year. Who knows how it's going to be changed. But one thing that can't be changed is the fact that once a tree is cut down it's cut down. So I can't think of any other proposition than to believe that this particular area of concern needs a Federal Impact statement. Now, Counsel for the Government has stated that there has been a non-decision, that the non-decision here is the important issue and the fact that there has been a non-decision, that that non-decision does not generate any necessity for the Act. And that may very well be true. But as we all know that sometimes a non-decision or a non-action can be a breach of an affirmative duty to act. And I believe in this case, where you have a situation where the Forest Service, in not acting upon this land in an affirmative nature and unclasifying it, and by having it in a category of unclassified, that it then becomes under the Multiple Use-Sustained Yield Act, that it is susceptible to the letting of timber contracts, that in effect you are classifying it and you are classifying it as timber that is available for harvesting and timber available for letting. So if the maximum utility of the land is given and in ten years from 1973, when the recommendation is to be made to Congress, the recommendation may be made that all the cut land should be reseeded. And that is of little avail to the intent of Congress. So I think so far as the preliminary injunction and the seriousness of this matter, I think that the NEPA is applicable in this case. I think it's applicable. The Secretary — or the Chief of Forest Service has taken it upon himself to designate a certain area as within which will be decided whether they will be wilderness areas or not. It may be that none of the areas will be wilderness areas. It may be that a fraction of them will be. However, he's taken it upon himself to do this, and the sum total is there has been no action at all to determine whether or not any areas are going to be covered by the NEPA statements. If we take each individual contract and say that each individual contract, taken in and of itself does not have an effect upon the environment, and come into court, you can very logically argue that it does not, but I don't think the Court can close its eyes and go about its business with blinders on and not look at the sum total effect upon each of the contracts. And the issue that I am looking at today primarily, is what was the intent of Congress when it enacted the NEPA Act and the intent of Congress was the protection of the environment. In the intent of Congress was the protection of the environment. How does that apply to this case here? The case here is a situation where we have remaining 43 million acres of possible wilderness area. If this Court does not take any action in this regard there's the possibility that the inaction of the Forest Service could very well deplete this natural resource and not the natural resource of lumber, but the natural resource of the scenic beauty and the natural resource of the fact that it's a wilderness area. The Court is going to issue a preliminary injunction and it is ordered that the motion for the preliminary injunction is granted and hereby ordered that the defendants, their agents, officers, servants, employees and attorneys and any persons in active concert or participation with them be and are hereby restrained from directly or indirectly One: cutting timber, building roads or taking any action or allowing any other persons to cut timber, build roads or take any action which will change the wilderness character of any roadless or undeveloped areas which were listed in the inventories of the Forest Service completed between January 1, 1972 [1971] and January 30, 1972 except pursuant to contracts entered into by the Forest Service by July 1, 1972; Two: entering into any contract on or after July 1, 1972, which will permit cutting timber, building roads or taking any action which will change the wilderness character of any roadless or undeveloped areas which are listed in inventories of the Forest Service completed between January 1, 1971 and June 30, 1972, unless and until a NEPA statement is filed and acted upon in accordance with the guidelines of the Council of Environmental Quality; Three: that this order is not to prohibit the Forest Service from here performing any reasonable activity of the Forest Service not inconsistent with this order. And I think that the intent of the order is that before a contract is let for the cutting of the timber upon the lands, a NEPA statement should be filed. Now, gentlemen, you had an order for some other matters and probably it would best to have them put regularly on the calendar and take it at that point. Again thank you very much for your patience and I will see you again. THE COURT: Now, what is the problem, gentlemen? You want to know what the order is, I assume, and the reporter hasn't typed it up? THE REPORTER: I am in the process, Your Honor. Well, the order is exactly the same as the order that has been heretofore entered into by the District Court which was a temporrary restraining order excepting that I would add at the end of Paragraph 2: "Unless and until a NEPA statement is filed and acted upon." In other words, the restraining order presently says that there's to be no letting of any contracts, period, and no cutting, no roads and no what have you. Well, I think that would probably be a little too restrictive and that the Court, as I said before, I don't intend to run the Forest Service because, as I said, the Court is very ill-equipped to run the Forest Service, but what I do think is that the order, as it presently stood, was restricted, especially if we are going to have it on a continuing basis such as this. So that there can be cutting, there can be timbering, there can be roads if a NEPA statement is filed in accordance with the guidelines of the Council on Environmental Quality. I meant by that, i.e., before it's put to bed, so that the public would have an opportunity to comment on it and people would have an opportunity to go back and forth and determine whether or not this remaining land is, and this contract, is sufficient impact on the environment. Also, I added a number three to it which would be: "This order is not to prohibit the Forest Service from performing any reasonable activity of the Forest Service not inconsistent with this order." There was comment made that there was a forest in Oregon that had burned and there were trees on the forest and unless they were timbered and taken away that it would rot and this would be a bad situation. So that is a proper activity of the Forest Service. There may be spraying operations in this particular area where roads have to be built or trails have to be built to get into that particular thing. That's a proper function of the Forest Service. Also I was going to add in the order, and maybe your clients certainly would welcome, with reference, and I alluded to it the other day, the difference between governmental and proprietory actions. If the government wants to put a tracking station or there is an electronic station of some type, these things are proper under this order. And the order merely goes to the cutting of the trees, of the mass cutting of trees until a NEPA statement is filed. MR. ALLEN: Your Honor, a minor point for verification which I don't think is arguable. I was reading a copy of the existing TRO when you were reading that. In the first paragraph the first date which appears is January 1, 1971. I thought I heard you say '72. I wondered which it was. THE COURT: Well, I have '72 here. MR. TERRIS: Well, Your Honor, the only hesitancy with the '72 is I think you had a discussion on this, and I believe it was with Mr. Smith yesterday, we are not entirely sure when some of the inventories were actually compiled and we are afraid if it's January 1, — THE COURT: I took this date from your order you gave me. MR. TERRIS: Well, there might have been a typo. The existing TRO I think said — THE COURT: The existing says '71. This one says '72. Well, whatever it is. I don't think any of us should play any games. We understand. MR. TERRIS: It should be January 1, 1971. THE COURT: All right. We will change it. MR. STRAYER: Did you decide it was '71? MR. STRAYER: That's the first date on the order? MR. STRAYER: Your Honor, I have two or three questions. I didn't understand the addition in the handwriting on the draft we got, Paragraph 2: "Until such time as a NEPA statement might be filed." Is that intended to modify only Paragraph 2 or is it applicable to Paragraph 1 as well? MR. STRAYER: It is applicable to both paragraphs? MR. STRAYER: And, as I understand it, the last provision, the Paragraph 3, is intended to cover the types of situations such as I mentioned of the salvage of the fire-filled timber? MR. STRAYER: The third item, Your Honor, I wonder about the provision for a bond, if any? We represent quite a number of clients that are probably going to be harmed by this. I don't know what the government's position may be but some of the individual defendants who rely on the national forest timber as a source of supply very probably are going to suffer damage if the injunction has been wrongfully issued against them. As I understood it Rule 65 requires a bond on a preliminary injunction where that was true. And I read all the cases on it and I don't know whether all the cases are consistent with Rule 65. I think in a case of this type, I believe in the Alaska case a bond of $1 was set? MR. TERRIS: One hundred dollars, Your Honor. THE COURT: A hundred dollars. Something like that. A minimal bond. MR. STRAYER: I think this is one — THE COURT: I don't think that the bond — in many of these cases the bond merely takes on a punitive nature more than anything else and it's sort of self-defeating. I will set a bond at $ 100 and let it go at that. MR. STRAYER: I think, Your Honor, in many cases the bond has been waived where the Government was the only party and in some cases it seems not to have been even considered but the rule I thought contemplated — THE COURT: Usually the rule, that rule, contemplates with reference to the ordinary garden variety type of restraining order. But I think that the cases have gone off on a different type of bond requirement when they dealt with cases of this type, the environment and the NEPA cases, and I believe that they have not been as insistent upon the bond requirement as they have, as I say, in the ordinary garden variety type of preliminary injunction where you are going to enjoin a trucking company, something like this, where you have the business relationship type thing. But where you have something of this nature I think that we could then argue for ten days on the amount of bond that would be required. It could be a million dollars, two million dollars. It could very well be. I don't know. MR. STRAYER: Very likely it would be very substantial. THE COURT: May well be. One of the things the Court has to do is balance the equities. In any action that you take some people are injured. The only question I have to look at at this particular juncture is what was the intent of Congress at the time that they enacted the environmental protection laws. MR. STRAYER: Mr. Selman (phonetic) just handed me an environmental case here, National Resources Defense Council versus Grant. [2 ELR 20185 (E.D.N.C., 1972) rev'd 2 ELR 20555 (4th Cir. 1972)] I haven't read this case, Your Honor. The part he has underlined here: "The cost is minute indeed in comparison to the equity of the farmers and the effect this project will have on the environment." I don't know enough about the case to know the context in which that statement was made. Perhaps Mr. Selman would like — THE COURT: Well, Counsel, I know enough about researching cases to know that you can find any case to almost substantiate any case you want. So far as bond cases you can find them from the Court saying no bond, in the discretion of the Court, and [3 ELR 20074] the good judgment of the Court, there's no bond required, the law is applicable. And the other cases that say well, $200,000 is not excessive. So we will set a bond at $ 100. MR. STRAYER: We have analogized the Forest Service Manual which I understand occupies something like twelve cubic feet of the Forester's Edition of the Lawyers' Corpus Juris. You can find most anything in there on either side. The last thing that I had, Your Honor, that I want to inquire about, and I think the Government may also have some questions on it because we have quite a number of clients that will be affected by the procedure for the filing of the NEPA statement: Is my understanding correct that the Court contemplates that if a NEPA statement were filed on a particular roadless area, for example, on one of them, where one of these sales were scheduled, they would then be free to go ahead and award the contract on that particular area where the statement was filed? In other words, they wouldn't have to file a NEPA statement on all this thirty-four million acres? THE COURT: Oh, no. I think that would invariably just take too long a period of time to be able to do that. I think that, or even by region, I think that it would be. I think what is going to happen in this case, that as time goes on that, the whole problem is going to take care of itself.I think that the Forest Service is going to designate certain areas as wilderness areas or categorize them as tentative wilderness areas and take care of the problem. The only thing I am concerned with is this interim period, it may be now, and may be two years from now, whenever this is done, and I think the only equitable thing to do would be not to require a NEPA statement for the whole United States nor require a NEPA statement for a region but I think require a NEPA statement on the basis of contracts that are let. I am fully cognizant of the fact that the argument is going to be brought in on each contract that this is only eighty acres or a hundred acres and what have you. But I think there will be enough interplay between the citizenry and the Government and the private industry with reference to the ecological effect of this particular cut, that I think the problem will take care of itself. MR. STRAYER: Yes. Thank you, Your Honor. Plaintiffs' motion for continuance of present injunctive relief, and motion for permanent injunction having come on for hearing this date, together with the Government's motion for summary judgment and intervenor lumber companies' motion to dismiss, and arguments having been heard thereon, it is hereby ordered as follows: (1) The Government's motion for summary judgment is denied; (2) Motion of intervenor lumber companies to dismiss is denied; (3) Plaintiffs' motion for a preliminary injunction is granted and it is hereby ordered that the defendants, their agents, officers, servants, employees and attorneys, and any persons in active concert or participation with them, shall continue to be restrained from: (a) Cutting timber, building roads or taking any action or allowing any other persons to cut timber, build roads, or take any action which will change the wilderness character of any roadless or undeveloped areas which were listed in inventories of the Forest Service completed between January 1, 1971, and June 30, 1972, except pursuant to contracts entered into by the Forest Service prior to July 1, 1972; (b) Entering into any contract, on or after July 1, 1972, which will permit cutting timber, building roads or taking any action which will change the wilderness character of any roadless or undeveloped areas which were listed in inventories of the Forest Service completed between January 1, 1971, and June 30, 1972, unless and until a N.E.P.A. Environmental Impact Statement is filed and acted upon, in accordance with the guidelines of the Council on Environmental Quality; (4) This order shall not prohibit the Forest Service from performing any reasonable activity not inconsistent with this order. This Court being informed that the Forest Service roadless area review program is continuing and that the Forest Service has determined to hereafter prepare environmental impact statements in accordance with the requirements of the National Environmental Policy Act before authorizing any future contracts for developmental activities in areas inventoried as part of its roadless area review program and has implemented that policy by a directive of the Chief of the Forest Service, and it further appearing that purchasers of existing contracts are not presently before this Court, (1) That the preliminary injunction entered herein on August 29, 1972, is dissolved; (2) That this action is dismissed without prejudice. Dated this 11 day of December, 1972. 3 ELR 20071 | Environmental Law Reporter | copyright © 1973 | All rights reserved |